ABDUL MOBEEN LAKHO, J.---Through this single judgment, we intend to dispose of the captioned Special Criminal Anti-T errorism Appeals arising out of the same judgment dated 15.08.2018 impugned hereinabove, passed by the learned Judge, Anti-T errorism Court No.XIX, Karachi in Special Case No. 80 of 2017, bearing Crime No. 13 of 2017, registered under sections 4/5, Explosive Substances Act read with section 7 of Anti-T errorism Act, 1997; and Special Case No. 81 of 2017 , bearing crime No. 14 of 2017, Police Station Nabi Bakhsh, registered under section 23(i)-A, Sindh Arms Act, 2013; whereby appellants have been convicted and sentenced as follows:- Appellant Javed Section 23(i)-A, Sindh Arms Act, 2013 Section 6(2)(ee) of A.T.A., 1997 punishable under section 7(f f) of A.T.A., 1997 read with sections 4/5, Explosive Substances Act, 190 to suf fer R.I for seven years and fine of Rs.1,00,000/- and in case of default of payment of fine, the accused will have to undergo R.I for two months more. to suf fer R.I for fourteen years with forfeiture of his property , if any , as required under section 7(2) of A.T.A., 1997 Appellant Shoukat Ali alias Sho Section 23(i)-A, Sindh Arms Act, 2013 Section 6(2)(ee) of ATA, 1997 punishable under section 7(f f) of A.T.A., 1997 read with sections to suf fer R.I for seven years and fine of Rs.1,00,000/- and in case of default of payment of fine, the accused will have to undergo R.I for two months more.
4/5, Explosive Substances Act, 1908 to suf fer R.I for fourteen years with forfeiture of his property , if any , as required under section 7(2) of A.T.A., 1997 Appellant Muhammad Suleman alias Kodo Section 23(i)-A, Sindh Arms Act, 2013 Section 6(2)(ee) of A.T.A., 1997 punishable under section 7(f f) of A.T.A., 1997 read with sections 4/5, Explosive Substances Act, 1908 to suf fer R.I for seven years and fine of Rs.1,00,000/- and in case of default of payment of fine, the accused will have to undergo R.I for two months more. to suf fer R.I for fourteen years with forfeiture of his property , if any , as required under section 7(2) of A.T.A., 1997 Appellant Muhammad Shakeel Section 23(i)-A, Sindh Arms Act, 2013 Section 6(2)(ee) of A.T.A., 1997 punishable under section 7(f f) of A.T.A., 1997 read with sections 4/5, Explosive Substances Act, 1908 to suf fer R.I for seven years and fine of Rs.100,000/= and in case of default will payment of fine, accused will have to undergo R.I for two months more. to suf fer R.I for fourteen years with forfeiture of his property , if any , as required under section 7(2) of A.T.A., 1997.
2. Succinctly facts unfolded by the prosecution are that on 01.02.1997 at about 0300 hours complainant Ziaul Haq, along with Hawaldar Rehmatullah Khan; Hawaldar Yahya khan and other employees in a Government Jeep No. 916626, Hilux No. 918156 two other government motorcycles upon which 2/2 Ranger officials duly armed with government ammunition at Marston Road, opposite UBL Bank, were busy in snap checking, meanwhile, one five- door Pajero Jeep in Silver Color , bearing No.BA9795 was signaled to stop, four persons were sitting in the vehicle, the complainant enquired about their in presence of witnesses i.e. Hawaldar Rehmatullah Khan and Hawaldar Yahya Khan. The pet son who was sitting at the driving seat disclosed his name to be Javed son of Muhammad Younus. Upon his personal search, the following items were recovered: three hand grenades from right side pocket of his shirt, two keys of locks; three persons who were sitting at back side of the driver . First one disclosed his name to be Shoukat son of Haji Muhammad Siddique, who was in possession of one SMG bearing No. 1975TN2088 in his hand, the complainant took the same and also found a-loaded magazine 20 cartridges, on further search the complainant recovered one hand grenade from his right side pocket of his shirt. Second one disclosed his name to be Salman son of Muhammad Salim, he was holding one Rifle, the complainant took the same from him and found loaded magazine with 20 cartridges; upon further search the complainant recovered one hand grenade from right side pocket of his shirt; third one disclosed his name as Shakeel son of Muhammad Siddiq he was holding one SMG, complainant took the same in his possession and found magazine 20 live cartridges; upon further search complainant also recovered one hand, grenade from side pocket of his shirt. The complainant also conducted a search of the vehicle and recovered one Rifle bearing No. 1954XH1 155 along with magazine and 20 bullets and one launcher grenade bearing No.5537, near the driver seat and gear lever of the vehicle. The complainant further recovered 400 bullets of SMG in one plastic bag lying under the driver seat. Upon further search complainant found one person tied with an iron chain from the back side portion of the vehicle under a blanket. Upon opening the lock of the chain with key, which was recovered from possession of accused Javed and upon enquiry that person disclosed his name to be Shah Nawaz son of Muhamm ad Younus, he further disclosed that he was kidnapped by above said accused persons from his house situated in Younisabad Maripur and today the accused persons were taking him to another place with the intention to kill and throw his dead body in an abandoned place. The complainant enquired from the accused persons about the valid license of the weapons, the accused persons could not produce the same thereafter the complainant prepared a memo of recovery in presence of above witnesses and brought the accused and case property and abductee at Police Station Nabi Bakhsh where FIR was lodged.
3. Upon completion of usual investigation, challan was submitted before the trial Court, a formal charge was framed against the accused to which they pleaded not guilty and claimed trial vide their plea at Ex.2 to Ex-5 respectively .
4. Prosecution to substantiate the charge examined PW-1 SIR Muhammad Ziaul Haq [complainant] at Ex.13. PW-2 Hawaldar Rehmatullah Khan [mashir] at Ex.14. Learned SPP filed statement give- up PW-Hawaldar Yahya Khan of Pakistan Rangers at Ex.15. PW-3 ASI Niamat Ali [author of FIR] at Ex.16, PW-4 CJ and JM-1 1th [South] Karachi at Ex.18, PW-5 SIP Ghulam Mustafa BDU Zone at Ex.19 and PW-6 I.O. Inspector Saeed Alam at Ex.20. Statement of accused as required under section 342, Cr.P.C. was recorded vide Ex.22 to 25 respectively , accused claimed themselves to be innocent but could not produce any Defence Witness to be examined in disproof of the charge as provided under section 340(2), Cr .P.C.
5. Syed Mehmood Alam Rizvi, advocate, representing appellant contended that impugned judgment is the result of misreading and non-reading of the evidence available on record and is not sustainable under the Law; that appellants have been booked in the instant case with mala fide intention and ulterior motives; that appellant No.1 was picked up by the Ranger officials on 31.01.2017 which is evident from C.P. No.625 of 2017 filed by father of appellant No.1; that the version of father of appellant No.1 was disbelieved; that the alleged recovery of hand grenade is also not supported by the Bomb Disposal Unit; that learned trial court ,has not appreciated major contradictions in the evidence of prosecution witnesses which are sufficient for acquittal of the appellants; that trial court has ignored the evidence of PW-5 SIP BDU; that the alleged recovery of unsealed three hand grenade, Launcher and 400 bullets as per evidence of PW-1 and PW-2 are in conflict with the report of BDU and FSL; that learned trial court ought to have disbelieved and rejected such belated confession which is against the logic and unacceptable to a prudent mind; that the impugned judgment is not a speaking judgment but is the result of non- appreciation of entire evidence available on record; the learned counsel for the appellants argued that the appellants have not committed any offence and prosecution foisted the alleged recovery upon appellants; lastly learned counsel prayed that the instant Special Criminal Anti-T errorism Appeals may be allowed.
6. Learned counsel relied upon the case law reported in 1995 SCMR 1345 Tariq Pervez v. The State, PLD 2005 Supreme Court 40 Muhammad Nawaz and another v. The State , 2007 SCMR 670 Muhammad Pervez and others v. The State and others , 2018 YLR Note 160 Zubair Ahmed alias Ladu v. The State , 2018 PCr.LJ Note 12 Aqeel alias Tiloo v. The State , 2018 PCr.LJ 1358 Abdul Kari alias Patni v. The State , 2018 YLR 661 Asif Khan v. The State, 2018 MLD 1220 Sikandar alias Sani v. The State , 2007 SCMR 670 Muhammad Pervez and others v. The State (sic.), 2018 YLR 1629 Abdur Rehman v. The State , 2011 PCr.LJ 48 Siraj Ahmed v. The State, 2018 YLR 1092 Salman alias Lamba and others v. The State , 2018 YLR 1629 Abdur Rehman v. The State (sic.), 2011 PCr.LJ 48 Siraj Ahmed v. The State (sic.) and 2018 PCr.LJ 1042 Asmatullah and others v.
The State .
7. Mr. Siraj Ali Khan, Additional Prosecutor General and Special Prosecutor Rangers , opposed the instant Special Criminal Anti-T errorism Appeals and further contended that the impugned judgment is well reasoned and is result of appreciation of entire evidence available on record; learned trial court has rightly reached to the conclusion that the appellants are real culprits and have been rightly convicted and sentenced; there is nothing wrong with the impugned judgment because appellants have been apprehended at the spot together with illicit ammunition and the explosive substances; the plea of early arrest of appellant Javed is not inconsistent with the alleged offence; the impugned judgment is in accordance with the law and is sustainable under the law, and would not require any interference by this Court; lastly Prosecu tor argued that the instant criminal appeals have no merits and may be dismissed and the impugned judgment may be upheld.
8. We have heard the learned counsel representing the appellant and the learned Prosecutors for the State and have minutely scanned the entire record available before us. It is a well settled principle of law that while deciding criminal appeal this court has to reappraise the entire evidence available on record for safe administration of criminal justice.
9. We have given our anxious thoughts to the contentions raised and have gone through the case papers made available before us. Suffice it to say that mere recovery of weapons without corroborative evidence A which inspires confidence is never sufficient to convict the accused. It is a well settled principle of law that burden is always upon the prosecution to prove the case beyond a shadow of doubt; keeping in view this basic touchstone of criminal administration of justice, we have examined the entire evidence along with the impugned judgment. From its perusal, we have concluded that the prosecution has failed to prove its case against the appellants beyond a reasonable doubt for the reasons that there is a series of contradictions in the evidence of prosecution witnesses.
The prosecution witnesses do not seem to agree on the manner of recovery and descriptions of grenades allegedly recovered from the appellants.
10. PW-1, PW-2 and PW6 have given evidence that from the appellants "Hand Grenades" were recovered. But contrary to their evidence, PW-3 and PW-5 have deposed that "06 Rifle Grenades" were recovered from the appellants. BDU report at Exb 19-C also supports the version of PW-3 and PW-5 and shows inspection of 06 Rifle Grenades. This contradiction in the evidence of PW-1, PW2 and PW-6 when compared to PW-3 and PW-5 with regard to the description of grenades has dealt a severe blow to the veracity of prosecution case to the extent of recovery of grenades.
11. Apart from above contradictions, the question also arises that if it is possible that 3 rifle grenades could be put in the pocket of the shirt. With the able assistance of the counsels we were able to see the pictures of hand grenades as well as rifle grenades. If we consider that the grenades recovered are hand grenades then prosecution story may appear to be reasonable to some extent, but if it was rifle grenades the same would not appeal to common sense as the size of the rifle grenade in length is thrice as big when compared to a hand grenade; and three of those could not have been kept in the pocket of shirt. Besides there are other irregularities as well i.e. not mentioning the numbers in both cases of hand grenade and rifle grenade. Therefore this kind of recovery undoubtedly creates a doubt in the prosecution case.
12. Further , it has surfaced on record that the convict appellants were arrested on 01-02-2017; whereas, confessional statement of appellant Javed was recorded by the learned Magistrate on 08.02.2017 after a delay of seven days. The same does not seem voluntarily as the appellant Javed has seemingly admitted so many offences allegedly committed by him many years ago but regarding those offences, the prosecution case is silent as to what action was taken to indict him in C those cases. The fact that the appellant has not been indicted in any of those admitted crime and offences would seriously jeopardize the trustfulness of his alleged confession making it untrustworthy of reliance. Additionally no certificate has been appended by the learned Magistrate with the confessional statement of the accused as provided under section 164, Cr.P.C. Moreover the applicant Javed has not been confronted with his confessional statement in his 342, Cr.P.C. statement. It is by now well settled that if any incriminating evidence is not put to accused in his 342, Cr.P.C. statement, the same could not be used against him. Reliance is placed in the case law reported by the Hon'ble Supreme in case of Mohammad Shah v. The State [2010 SCMR 1009 ] be referred which reads as follows:- "11. It is not out of place to mention here that both the Courts below have relied upon the suggestion of the appellant made, to the witnesses in the cross-examination for convicting him thereby using the evidence available on the record against him. It is important to note that all incriminating pieces of evidence, available on the record, are required to be put to the accused, as provided under section 342, Cr.P.C. in which the words used are "For the purpose of enabling the accused to explain any circumstances appearing in evidence against him" which clearly demonstrate that not only the circumstances appearing in the examination-in-chief are put to the accused but the circumstances, appearing in cross-examination or re-examination are also required to be put to the accused, if they are against him, because the evidence means examination-in-chief, cross-examination and re-examination, as provided under Article 132 read with Articles 2(c) and 71 of Qanun-e-Shahadat Order , 1984. The perusal of statement of the appellant, under section 342, Cr.P.C., reveals that the portion of the evidence which appeared in the cross-examination was not put to the accused in his statement under section 342, Cr.P.C. enabling him to explain the circumstances particularly when the same was abandoned by him. It is well-settled that if any piece of evidence is not put to the accused in his statement under section 342, Cr.P.C. then the same cannot be used against him for his conviction. In this case both the Courts below without realizing the legal position not only used the above portion of the evidence against him, but also convicted him on such piece of evidence, which cannot be sustained. ( 2010 SCMR 1009 )"
It has also been laid down in the case of Muhammad Nawaz and others v. The State and others [2016 SCMR 267] the honourable Supreme Court of Pakistan has been pleased to observe as follows:- "..............There is yet another aspect of the case. While examining the appellants under section 342, Code of Criminal Procedure, the medical evidence was not put to them. It is well settled by now that a piece of evidence not put to an accused during his/her examination under section 342, Code of Criminal Procedure, could not be used against him/her for maintaining conviction and sentence."
In a case reported in 1985 PCr.LJ 1118 in the case of Akhtar Muhammad v. The State , it has been held as follows:- "----S. 364---Penal Code (XLV of 1860), S. 302---Confession--Delay of seven days in recording of confession--- Magistrate recording confession after satisfying himself that accused was giving voluntary confession---Confession read over to accused who was illiterate person and after his admission that it was correct, Magistrate taking his signature---Magistrate appending certificate is required under 364, Cr.P.C.---Accus ed remanded to judicial custody after confession was recorded---Recordin g of confession after 7 days, held, immaterial in circumstances---Every confession to be considered on its own merits in light of surrounding facts and circumstances."
13. We are simply unable to rely on the quality of evidence for reasons that prosec ution evidence does not inspire confidence and is full of doubts as discussed above. It is a known principle of appreciation of evidence that the benefit of even a single circumstance in the prosecution evidence must go to the accused. Reliance is also placed in the case of (Ikram Ullah v. The State [2017 YLR 712] [Islamabad], Muhammad Nawaz and another v. The State and others [PLD 2005 SC 40], Tariq Pervez v. The State [1995 SCMR 1345 ] and Muhammad Akram v.
The State [2009 SCMR 230 ]).
14. As discussed supra, we have come to the conclusion that prosecution has miserably failed to bring on record, cogent, reliable, confidence inspiring and trustworthy evidence to prove the afores aid cases against the appellants beyond a shadow of any reasonable doubt, therefore we extend benefit of doubt in favour of the appellants.
15. The recovery of grenades and weapons was allegedly effected in course of one and the same incident. We have found evidence of prosecution witnesses in regard to the recovery of grenades untrustworthy of reliance, when a portion of evidence of prosecution witness has not been relied upon the remaining portion would equally be looked at with suspicion as the truthfulness of witness is such circumstances would be in a dark cloud. We therefore cannot rely on the credence of these witnesses pertaining to the recovery of weapons and extend benefit of double to the appellants in this regard also.
In a case reported in (PLD 2019 SC 527) in the case of NOTICE TO POLICE CONST ABLE KHIZAR HAYAT; it has been held as follows:-
21. We may observe in the end that a judicial system which permits deliberate falsehood is doomed to fail and a society which tolerates it is destined to self-destruct. Truth is the foundation of justice and justice is the core and bedrock of a civilized society and, thus, any compromise on truth amounts to a compromise on a society's future as a just, fair and civilized society . Our judicial system has suffered a lot as a consequence of the above mentioned permissible deviation from the truth and it is about time that such a colossal wrong may be rectified in all earnestness. Therefore, in light of the discussion made above, we declare that the rule falsus in uno, falsus in omnibus shall henceforth be an integral part of our jurisprudence in criminal cases and the same shall be given effect to, followed and applied by all the courts in the country in its letter and spirit. It is also directed that a witness found by a court to have resorted to a deliberate falsehood on a material, aspect shall, without any latitude, invariably be proceeded against for committing perjury .
[emphasis supplied]
16. In view of above, the appeals are allowed. Resultantly the conviction and sentence recorded against the appellants in above cases is set aside and they are acquitted of charge. They shall be released forthwith if not required in any other case. These are the reasons of short order dated 03.12.2019